Temporary orders for support of spouse and children; suit money; attorney fees. 767.23(1)
Except as provided in ch. 822
, in every action affecting the family, the court or family court commissioner may, during the pendency thereof, make just and reasonable temporary orders concerning the following matters:
Upon request of one party, granting legal custody of the minor children to the parties jointly, to one party solely or to a relative or agency specified under s. 767.24 (3)
. The court or family court commissioner may order joint legal custody without the agreement of the other party and without the findings required under s. 767.24 (2) (b) 2.
This order may not have a binding effect on a final custody determination.
Upon the request of a party, granting periods of physical placement to a party. The court or family court commissioner shall make a determination under this paragraph within 30 days after the request for a temporary order regarding periods of physical placement is filed.
Requiring either party or both parties to make payments for the support of minor children, which payment amounts may be expressed as a percentage of parental income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of parental income or a fixed sum.
Requiring either party to pay for the maintenance of the other party. This maintenance may include the expenses and attorney fees incurred by the other party in bringing or responding to the action affecting the family.
Requiring either party to execute an assignment of income under s. 767.265
or an authorization for transfer under s. 767.267
Requiring either party or both parties to pay debts or perform other actions in relation to the persons or property of the parties.
Requiring counseling of either party or both parties.
Requiring either party or both parties to maintain minor children as beneficiaries on a health insurance policy or plan.
Requiring either party or both parties to execute an assignment of income for payment of health care expenses of minor children.
If a family court commissioner believes that a temporary restraining order or injunction under s. 813.12
is appropriate in an action, the court commissioner shall inform the parties of their right to seek the order or injunction and the procedure to follow. On a motion for such a restraining order or injunction, the family court commissioner shall submit the motion to the court within 5 working days.
Before making any temporary order under sub. (1)
, the court or family court commissioner shall consider those factors which the court is required by this chapter to consider before entering a final judgment on the same subject matter. If the court or family court commissioner makes a temporary child support order that deviates from the amount of support that would be required by using the percentage standard established by the department under s. 49.22 (9)
, the court or family court commissioner shall comply with the requirements of s. 767.25 (1n)
. A temporary order under sub. (1)
may be based upon the written stipulation of the parties, subject to the approval of the court or the family court commissioner. Temporary orders made by the family court commissioner may be reviewed by the court as provided in s. 767.13 (6)
Notice of motion for an order or order to show cause under sub. (1)
may be served at the time the action is commenced or at any time thereafter and shall be accompanied by an affidavit stating the basis for the request for relief.
Upon making any order for dismissal of an action affecting the family or for substitution of attorneys in an action affecting the family or for vacation of a judgment theretofore granted in any such action, the court shall prior to or in its order render and grant separate judgment in favor of any attorney who has appeared for a party to the action and in favor of any guardian ad litem for a party or a child for the amount of fees and disbursements to which the attorney or guardian ad litem is, in the court's judgment, entitled and against the party responsible therefor.
Upon making any order for dismissal of an action affecting the family or for vacation of a judgment granted in any such order, the court shall, prior to or in its order of dismissal or vacation, also preserve the right of the state or a political subdivision of the state to collect any arrearages, by an action under this chapter or under ch. 785
, owed to the state if either party in the case was a recipient of aid under ch. 49
History: 1971 c. 149
; 1971 c. 211
; 1971 c. 220
; 1975 c. 283
; Sup. Ct. Order, 73 W (2d) xxxi (1976); 1977 c. 105
; 1979 c. 32
, 92 (4)
; 1979 c. 111
; 1979 c. 352
; Stats. 1979 s. 767.23; 1983 a. 27
; 1983 a. 204
; 1983 a. 447
; 1985 a. 29
s. 3202 (9)
; 1987 a. 355
; 1989 a. 212
; 1991 a. 39
; 1993 a. 78
; 1995 a. 27
, 9126 (19)
; 1995 a. 70
Where a guardian ad litem is appointed where the issue of custody of a child is disputed, his fee should be divided between both parties when their ability to pay is equal. Lacey v. Lacey, 45 W (2d) 378, 173 NW (2d) 142.
An order for attorney's fees is enforceable by contempt; if the judgment only refers to a stipulation for attorney's fees, it is not so enforceable. The court cannot enter a judgment in favor of the attorneys directly. Before a contempt order is issued the defendant must have notice of an application for it which must be made by the wife to whom the fees are payable. O'Connor v. O'Connor, 48 W (2d) 535, 180 NW (2d) 735.
Order directing the husband to contribute $2,000 to the wife's attorney's fees is not an abuse of discretion. Tesch v. Tesch, 63 W (2d) 320, 217 NW (2d) 647.
Denial of the wife's motion for attorneys' fees to prosecute the wife's appeal is held to constitute an abuse of discretion, since the issues in the case were vigorously contested and in no way frivolous. Markham v. Markham, 65 W (2d) 735, 223 NW (2d) 616.
Sub. (3) (a) is strictly construed to apply to those situations expressly set forth in the statute, i.e., orders for dismissal, substitution of attorneys and vacation of judgments, in actions affecting families. In other cases, an action to recover legal fees may be instituted. Kotecki & Radtke, S.C. v. Johnson, 192 W (2d) 429, 531 NW (2d) 606 (Ct. App. 1995).
The federal tax consequences of divorce. Meldman, Ryan, 57 MLR 229.
Custody and physical placement. 767.24(1)
In rendering a judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under s. 767.02 (1) (e)
, the court shall make such provisions as it deems just and reasonable concerning the legal custody and physical placement of any minor child of the parties, as provided in this section.
(2) Custody to party; joint or sole. 767.24(2)(a)(a)
Subject to par. (b)
, based on the best interest of the child and after considering the factors under sub. (5)
, the court may give joint legal custody or sole legal custody of a minor child.
The court may give joint legal custody only if it finds that doing so is in the child's best interest and that either of the following applies:
The parties do not agree to joint legal custody, but one party requests joint legal custody and the court specifically finds all of the following:
Both parties are capable of performing parental duties and responsibilities and wish to have an active role in raising the child.
No conditions exist at that time which would substantially interfere with the exercise of joint legal custody.
The parties will be able to cooperate in the future decision making required under an award of joint legal custody. In making this finding the court shall consider, along with any other pertinent items, any reasons offered by a party objecting to joint legal custody. Evidence that either party engaged in abuse, as defined in s. 813.122 (1) (a)
, of the child, as defined in s. 48.02 (2)
, or evidence of interspousal battery, as described under s. 940.19
or 940.20 (1m)
, or domestic abuse, as defined in s. 813.12 (1) (a)
, creates a rebuttable presumption that the parties will not be able to cooperate in the future decision making required. This presumption may be rebutted by clear and convincing evidence that the abuse will not interfere with the parties' ability to cooperate in the future decision making required.
NOTE: Subd. par. c. is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
If the interest of any child demands it, and if the court finds that neither parent is able to care for the child adequately or that neither parent is fit and proper to have the care and custody of the child, the court may declare the child to be in need of protection or services and transfer legal custody of the child to a relative of the child, as defined in s. 48.02 (15)
, to a county department, as defined under s. 48.02 (2g)
, or to a licensed child welfare agency. If the court transfers legal custody of a child under this subsection, in its order the court shall notify the parents of any applicable grounds for termination of parental rights under s. 48.415
If the legal custodian appointed under par. (a)
is an agency, the agency shall report to the court on the status of the child at least once each year until the child reaches 18 years of age, is returned to the custody of a parent or is placed under the guardianship of an agency. The agency shall file an annual report no less than 30 days before the anniversary of the date of the order. An agency may file an additional report at any time if it determines that more frequent reporting is appropriate. A report shall summarize the child's permanency plan and the recommendations of the review panel under s. 48.38 (5)
, if any.
The court shall hold a hearing to review the permanency plan within 30 days after receiving a report under par. (b)
. At least 10 days before the date of the hearing, the court shall provide notice of the time, date and purpose of the hearing to the agency that prepared the report, the child's parents, the child, if he or she is 12 years of age or over, and the child's foster parent, treatment foster parent or the operator of the facility in which the child is living.
Following the hearing, the court shall make all of the determinations specified under s. 48.38 (5) (c)
and, if it determines that an alternative placement is in the child's best interest, may amend the order to transfer legal custody of the child to another relative, other than a parent, or to another agency specified under par. (a)
The charges for care furnished to a child whose custody is transferred under this subsection shall be pursuant to the procedure under s. 48.36 (1)
or 938.36 (1)
except as provided in s. 767.29 (3)
(4) Allocation of physical placement. 767.24(4)(a)(a)
Except as provided under par. (b)
, if the court orders sole or joint legal custody under sub. (2)
, the court shall allocate periods of physical placement between the parties in accordance with this subsection. In determining the allocation of periods of physical placement, the court shall consider each case on the basis of the factors in sub. (5)
A child is entitled to periods of physical placement with both parents unless, after a hearing, the court finds that physical placement with a parent would endanger the child's physical, mental or emotional health.
No court may deny periods of physical placement for failure to meet, or grant periods of physical placement for meeting, any financial obligation to the child or the former spouse.
If a court denies periods of physical placement under this section, the court shall give the parent that was denied periods of physical placement the warning provided under s. 48.356
If the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody and physical placement rights to provide the notice required under s. 767.327 (1)
(5) Factors in custody and physical placement determinations.
In determining legal custody and periods of physical placement, the court shall consider all facts relevant to the best interest of the child. The court may not prefer one potential custodian over the other on the basis of the sex or race of the custodian. The court shall consider reports of appropriate professionals if admitted into evidence when legal custody or physical placement is contested. The court shall consider the following factors in making its determination:
The wishes of the child's parent or parents.
The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.
The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest.
The child's adjustment to the home, school, religion and community.
The mental and physical health of the parties, the minor children and other persons living in a proposed custodial household.
The availability of public or private child care services.
Whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party.
Whether either party has or had a significant problem with alcohol or drug abuse.
Such other factors as the court may in each individual case determine to be relevant.
If legal custody or physical placement is contested, the court shall state in writing why its findings relating to legal custody or physical placement are in the best interest of the child.
In making an order of joint legal custody, upon the request of one parent the court shall specify major decisions in addition to those specified under s. 767.001 (2m)
Notwithstanding s. 767.001 (1s)
, in making an order of joint legal custody, the court may give one party sole power to make specified decisions, while both parties retain equal rights and responsibilities for other decisions.
In making an order of joint legal custody and periods of physical placement, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child, for the purpose of determining eligibility for aid under s. 49.19
or benefits under ss. 49.141
or for any other purpose the court considers appropriate.
No party awarded joint legal custody may take any action inconsistent with any applicable physical placement order, unless the court expressly authorizes that action.
In an order of physical placement, the court shall specify the right of each party to the physical control of the child in sufficient detail to enable a party deprived of that control to implement any law providing relief for interference with custody or parental rights.
Except under par. (b)
or unless otherwise ordered by the court, access to a child's medical, dental and school records is available to a parent regardless of whether the parent has legal custody of the child.
A parent who has been denied periods of physical placement with a child under this section is subject to s. 118.125 (2) (m)
with respect to that child's school records, s. 51.30 (5) (bm)
with respect to the child's court or treatment records, s. 55.07
with respect to the child's records relating to protective services and s. 146.835
with respect to the child's patient health care records.
(7m) Medical and medical history information. 767.24(7m)(a)(a)
In making an order of legal custody, the court shall require a parent who is not granted legal custody of a child to provide to the court medical and medical history information that is known to the parent. If the court orders joint legal custody, the court shall require each parent to provide to the court medical and medical history information that is known to the parent. The court shall keep the information confidential and may release it only as provided in this subsection. The information provided shall include all of the following:
The known medical history of the parent providing the information, including specific information about stillbirths or congenital anomalies in the parent's family, and the medical histories, if known, of the parents and siblings of the parent and any sibling of the child who is a child of the parent, except that medical history information need not be provided for a sibling of the child if the parent or other person who is granted legal custody of the child also has legal custody, including joint legal custody, of that sibling.
A report of any medical examination that the parent providing the information had within one year before the date of the order.
Upon the joint written request of a physician and a parent or other person with legal custody of the child, the court shall release the information provided under par. (a)
to a physician designated in the request. The physician joining in the request need not be the same physician designated in the request. The physician to whom the information is released shall keep the information confidential, but may release to the parent or other person with legal custody who made the request under this paragraph only that portion of the information that the physician determines is relevant to the child's medical condition.
(8) Notice in judgment.
A judgment which determines the legal custody or physical placement rights of any person to a minor child shall include notification of the contents of s. 948.31
Notwithstanding 1987 Wisconsin Act 355, section 73
, as affected by 1987 Wisconsin Act 364
, the parties may agree to the adjudication of a custody or physical placement order under this section in an action affecting the family that is pending on May 3, 1988.
History: 1971 c. 149
; 1975 c. 39
; 1977 c. 105
; 1979 c. 32
, 92 (4)
; 1979 c. 196
; Stats. 1979 s. 767.24; 1981 c. 391
; 1985 a. 70
; 1987 a. 332
; 1987 a. 355
; 1989 a. 56
; 1989 a. 359
; 1991 a. 32
; 1993 a. 213
; 1995 a. 77
; s. 13.93 (2) (c).
NOTE: 1987 Wis. Act 355
, which made many changes in this section, contains a "legislative declaration" in section 1 and explanatory notes.
Impropriety of the award of custody of the child to the mother cannot be predicated on the guardian ad litem's contrary recommendation. Heiting v. Heiting, 64 W (2d) 110, 218 NW (2d) 334.
The award of custody to the father was reversible error where the trial court should have recognized the rule of comity and declined to exercise its jurisdiction. Sheridan v. Sheridan, 65 W (2d) 504, 223 NW (2d) 557.
See note to 767.05, citing LaChapell v. Mawhinney, 66 W (2d) 679, 225 NW (2d) 501.
Res judicata is not to be applied to custody matters with same strictness as to other matters. Kuesel v. Kuesel, 74 W (2d) 636, 247 NW (2d) 72.
See note to 767.045, citing Allen v. Allen, 78 W (2d) 263, 254 NW (2d) 244.
See note to 767.245, citing Bahr v. Galonski, 80 W (2d) 72, 257 NW (2d) 869.